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  4.  ► The Other White Hat in the Courtroom – A Commentary on the Role of the Criminal Defense Attorney

A Commentary By Robert C. Bonsib On the Role Of A Criminal Lawyer


[This article was originally written for the May, 2006 Law Day edition of the Prince George’s County Bar Newsletter. It has been updated.]

I am occasionally reminded that in 1987, when I left the United States Attorney’s Office to return to the States Attorneys’ Office to serve as Deputy States Attorney under then States Attorney Alexander Williams, Jr, that I gathered the 50 or so prosecutors in the States Attorneys’ Office in a courtroom to remind them of their great responsibilities as ones who wore the “white hat” when they were in the courtroom.

I served for 15 years as a state and federal prosecutor. Now, after more than 20 years as a criminal defense lawyer, I know that while my 1987 charge to those prosecutors was correct, it was also incomplete. What I did not realize at the time, and what is now crystal clear to me as we celebrate Law Day, is that is important to remember, and never forget, that there are two “white hats” in every criminal courtroom and that both the defense lawyer and the prosecutor can proudly proclaim to wear the “white hat.”. Ensuring that there is fair and equal justice in the criminal justice system is a shared responsibility. Time, and more recently advances in the forensic sciences, constantly remind us that no matter how confident, certain and definite prosecutors, judges and witnesses may be in their belief as to the guilt of our clients, they can be, and with scary frequency, are simply wrong. Hardly a month goes by without the media reporting on someone who has been wrongly convicted and freed only after spending decades in jail.

One need only read about the dishonorable actions of the prosecutor in the Duke case where lacrosse players were publicly humiliated and vilified for a crime that they simply did not commit. That prosecutor withheld evidence, made false and misleading statements and reminded us all that we must be ever vigilant against forming opinions and reaching conclusions, just because a police officer or prosecutor says something is so.

What confidence can we have in federal prosecutions in a climate where prosecutors may have been removed or appointed simply to please those in positions of authority in Washington, D.C.?

Do cops lie? Do prosecutors withhold favorable evidence? Do forensic experts fudge their results or perform their examinations in a sloppy or reckless manner? Do some judges always believe the cops regardless of the improbability of law enforcement tes­timony? Just read the newspapers and reflect over what we have seen over the last few years.

Texas – In 2003, Texas prosecutors finally agreed to throw out the convictions of 38 people, nearly all of whom were African-Americans, who were arrested in 1999 and faced drug charges, including some who were convicted and serving sentences of more than 90 years. These convictions were based upon the uncorroborated testimony of a white undercover police officer who was subsequently indicted for perjury for lying during the prosecutions. Prosecutors, in face of evidence that the undercover officer was dishonest, unreliable and a racist, ultimately stipulated that the officer was “simply not a credible witness under oath”. The governor pardoned 35 of the 38 defendants. Frighteningly, yet not surprisingly, at trial jurors had believed the now discredited police officer, judges imposed harsh sentences and many innocent defendants pled guilty to offenses they did not commit simply to avoid the draconian sentences they had seen judges hand out to those who had been convicted after they had dared to go to trial. Had it not been for the pro bono efforts of lawyers from civil rights organizations and defense attorneys from major national law firms who took the time to expose this injustice, it is likely that this activities of this rogue police officer would have remained secret and hidden and many innocent people would still be in jail or burdened for life with convictions for offenses they never committed.

Washington, D.C. & Detroit – The Department of Justice touts its first major post-September 11th terrorist prosecution in a case in Detroit. Under the aggressive and initially lauded prosecution efforts of an Assistant U.S. Attorney, the Department of Justice wins convictions of three individuals. The Attorney General praises the convictions as a great step forward in the fight against terrorism. After the convictions, evidence is developed that the federal prosecutor withheld evidence. The convictions were thrown out and the federal prosecutor was indicted for obstruction of justice and for making false statements.

Texas (again) – In 2003 a federal judge in Texas throws out the conviction of a former CIA operative saying that the Justice Department “knowingly used false evidence against him” and suppressed other evidence.

Maryland – Closer to home, Michael Austin is freed from the MD Department of Corrections after spending 27 years in prison as a result of a conviction for felony murder, a crime that it is now certain that he did not commit but one as to which 27 years ago prosecutors and a jury were positive that he had committed.

Virginia – In Virginia, a man is finally pardoned after spending 15 years in prison for a rape that he did not commit. When another man confessed to the crime, the then governor of Virginia rejected the confession. Even after DNA testing confirmed that the man did not commit the offense, the laws of Virginia prohibited the evidence from being consider by the courts. Why is it so difficult to force our courts to accept and correct wrongfully decided cases?

Washington, D.C. – The Inspector General of the Department of Justice issued a report concerning the treatment of an Oregon lawyer who had been detained by federal authorities after being mistakenly linked to the 2004 Madrid train bombings. What was originally touted as conclusive fingerprint evidence was later proven to be faulty evidence based upon mistaken conclusions reached by an FBI fingerprint examiners. The report concluded that the examiners were reluctant to admit their mistakes because the lawyer was a Muslim convert and had represented a terrorist defendant in court.

What does this tell us about the notion that fingerprint evidence cannot be challenged. What is the attorneys for the Oregon lawyer had conceded the infallibility of fingerprint evidence?

Miami, FL. – During the retrial of four Miami police officers in 2004, prosecutors are forced to abandon their prosecution after their key witness is proven to have offered perjured testimony.

Montgomery County, MD. – A few years ago, a school teacher in Montgomery County is accused by teenage girls of sexual molestation. Why would the girls lie? The teacher must be guilty. However, it soon becomes clear that the girls lied. Each later admitted that the allegations were false. At least one of the girls is prosecuted in juvenile court for filing a false report and admits her guilt.

Isn’t “scientific evidence” of guilt argued to be the most compelling type of evidence? Numerous investigations and the dogged work of criminal defense lawyers repeatedly have reminded us that even if the science is reliable, the management of the labs, the integrity of the testing process and the truthfulness and/or competence of the examiners cannot be assume or taken for granted.

There are abundant examples of other post-conviction investigations confirming the innocence of individuals who have served years, and in some instances, decades in prison after have been convicted based upon so-call “positive” identifications, allegedly “conclusive” forensic test results or court sanctioned “voluntary and reliable confessions”

What should make each of us proud of our profession is that there are amongst us lawyers who are “mad as hell and can’t take it anyone” and who demand that justice be done for their clients regardless of the personal, economic or societal status of the client. We read about such lawyers in the more notorious cases, but we can also look amongst our colleagues to see examples of lawyers who struggle each day to fight the good fight for their clients by constantly working to debunk the often automatic conclusion that such evidence is reliable, accurate and sufficient to send our clients to jail.

How often have we had to advise a client that he or she should not testify at a suppression hearing as to whether a constitutional right has been violated by the actions of police officer, not because we don’t believe our client, but because we know that nearly 100% of the time a judge will make a credibility finding in favor of law enforcement? Why should we expose the client to examination and cross-examination during a motions hearing when we are nearly certain that the client will not be believed because he or she is the defendant”? When was the last time that you heard a judge conclude, in a contested suppression hearing, that the testimony of the defendant was credible and that the testimony of the police officer was suspect or false?

When county police began videotaping some of their interrogations, an incredible thing happened. Taped confessions began to confirm what many had suspected was occurring behind some of the doors of county police interrogation rooms. These video-taped interrogations showed officers conducting interrogations using techniques that judges held amounted to unconstitutional intimidation. In other instances the videotape evidence conclusively established that interrogators blatantly ignored the accused’s request for an attorney.

The Washington Post reported on one such case. It highlighted one videotaped interview which revealed what actually happened in that case after an arrestee asked to speak to an attorney. The police officer asked the defendant, “Do you know what your lawyer’s going to do for you?” The detective then volunteered his own answer to his questions as follows: “You think the defense lawyer and the prosecutor don’t go out and have breakfast and lunch together and play golf together and hang out and talk about you and how they took money from you. They couldn’t care less about you. The only thing you are to them is a check, unless you get a public defender and they get paid anyway, and they certainly don’t give a crap. They get a big stack of cases, 50 people like you, and they have to defend them everyday. You’re just another number.”

In the 2003 Post article, the Honorable William D. Missouri, then Chief Administrative Judge of the Prince George’s County Circuit Court “hit the nail on the head” when he was quoted in the article, discussing the questionable police conduct uncovered by the videotaped confession. He observed that “If they do this when they are being taped, what happens when they are not being taped?” Well, we know. Our clients tell us all the time, yet how often are they believed? Without a videotape, which of our clients would be believed when he or she testifies that they made a request for an attorney and that claimed is denied by the interrogator?

We have heard the repeated stories from out clients, many unsophisticated in the ways of the criminal justice system, telling us of their having requests for an attorney being ignored or of searches subsequently falsely characterized by police officers as “consent” searches. We know about the skepticism with which the “system” normally view the complaints of our clients. It’s great when there is a videotape. It settles the dispute. But what about all those times when there is no videotape? Will the courts and prosecutors consider what they have seen and learned in those videotapes as providing possible corroboration and support as to what our clients assert happens in interview rooms during untaped interrogations or will our clients’ assertions continue to be routinely discounted as “incredible” or “unbelievable?” It is our job to stand up and remind judges and prosecutors that just because there is no videotape, the defendant may still be the real truth-teller in the courtroom and that it is wrong to fall back into the routine of presumptively believing the police.

Law Day is our time to remember and proclaim that criminal defense lawyers are the “other white hat” in the courtroom. We have to stand up and remind prosecutors and judges and juries, and occasionally ourselves and our colleagues, that we are the force that makes the system work. Without our challenges, cajoling, harassing, repetitive demands and arguments that prosecutors and courts be skeptical and careful and thorough and follow the rules, the system will roll over our clients. There are times when we need to throw sand into the wheels of justice, to slow it down, to remind judges, prosecutors and ourselves that sometimes are clients are innocent, that sometimes they are the ones telling the real truth in the courtroom and that occasionally we should to take the extra time to get it right.

Maybe most of our clients are not totally innocent, but some are. Many others are not as guilty as the government and its prosecutors contend. I think it is fair to say that most of our clients are decent people, many of whom have made tough and often, wrong decisions under tough circumstances. Those decisions often carry criminal consequences. Few of our clients are truly evil. Even those few that are “100% bad” and deserve to be separated from society have a right to insist that we challenge the system to meet its constitutional responsibilities and bur-dens before it throws them in jail for the rest of their lives.

Our jobs are exciting and fulfilling and frustrating and rewarding and draining. We are always in danger of overlooking the fact that one client we are dealing with on a day when we are really having a “bad day” and when we may be tempted to just get the case over, will long suffer the consequences and decisions we make on that day. When our bad day is over, our client’s life will have been forever altered, for better or worse, in part, perhaps because of what we did or did not do on our “bad day”. We cannot let down. We are professional and ethically bound to put forth 110% for each client and in our cases each of us tries to take that obligation seriously.

We are fortunate in our county to have a good judiciary. Most of the prosecutors we deal with on a daily try to be fair minded and reasonable. It is, however, part of our Law Day responsibility to constantly remind our judges and our prosecutors, and on occasion, confront each with the impact that their decisions have on our clients. When someone wants to put my client in jail for 10 years, I find myself reflecting on the things that have occurred in my life and that of my family during the time my son grew from 7 years of age to 17 years of age. It was a long time. What does it mean to throw around the number of years a client might go to jail 5 – 10 – 15 years. These may just be numbers to some but they are long years, each one of them, to our clients and our clients’ families. What does it really mean, day-by-day, in the life of my client to loose the right to be in the life of his or her child as the child grows from 7 – 17. Some of our clients may have forfeited their right to be in society and to be free, but too often par­ticipants in the system throw around years of imprisonment without any real appreciation of what that sentence re-ally means in the life of a human be­ing. Ensuring proportionality in punishment is one of our most critical respon­sibilities.

For those of us who practice in federal courts, it is a special challenge to remain fresh and hopeful in our ef­forts to assist our clients. Too often Congress and the appellate courts have ceded to federal prosecutors the right and power to play the role of advocate and, in many instances, umpire in the federal criminal justice system.

While there are many reasonable federal prosecutors, too many wield a heavy club as they assert their authority and their power. Good judges who have tried to be fair in their sentencing and in their legal decision-making have often found their discretion restrained by some prosecutors who have a “my way or the highway” attitude. Such prosecutors are the ones most likely to use the draconian sets of rules and statutes given to them to force judges to impose the government’s will and to leverage defendants to forfeit their trial rights to avoid the harsh and unyielding sentences that often face those who have the “guts” to assert their constitutional right to trial and challenge the government.

It always amazes me when I hear that a political body has been more willing to pass legislation that trusts the judgment of some 30 year-old prosecutor who often has had a relatively limited and a very parochial life experience, over the lifetime wisdom of a judge who has no vested interest in the outcome of a particular case. Can you imagine playing a ballgame where the other team was given the power to influence and in some instances, control the decision of the referee as to disputed calls? When we and our colleagues enter a federal courtroom to do battle with the government the “other white hat” that is worn by a criminal defense lawyer has a special glow.

If I have vented a bit in this article, I make no apologies. I have been on both sides. I remember what I thought in 1987 when I was a prosecutor responsible for encouraging a staff of 50 prosecutors to fight the good fight and advocate for the rights victims of crime and the interests of the community in good law enforcement. Those feelings and emotions still ring true and I fondly remember that experience. Now having spent more years on the other side of the courtroom, I know from my experiences and the lessons taught to me by my brothers and sisters of the criminal defense bar, as well as by my clients, that the role criminal defense lawyer is both as important and more difficult and in today’s environment, perhaps much more so than that of a prosecutor.

In this month in which we celebrate Law Day – and for the other 11 months of the year – whether we are the public defenders who deal with large caseloads and frequently ungrateful clients, whether we are those concentrate their private practice in criminal defender whether we are those who only occasionally represent criminal clients – each of us has the right to, and I submit the privilege and obligation to proudly wear that “other white hat”. It shines brighter and bolder each time we demand the best from the criminal courts and from those who work in those courts both with us and against us. Our criminal defense bar truly has earned the accolade as “the last champions of liberty”.

Over 45 years of trial experience as a federal and state prosecutor and as a criminal defense attorney